RAM LABHAYA BHANDARI Vs. SHIV PARSHAD

JUDGEMENT

(1.) The petitioner impugns the order of the trial sub-Judge dated 24th Aug., 1982 whereby he declined to pass a decree in his favour in a suit under O.37 of the civil P. C. (for short, the code) in spite of the noncompliance of the provisions of R. 3 (5) by the defendant-respondent. The undisputed facts are as follows:

(2.) The suit was filed on l8th Dec., 1981 for the recovery of Rs. 7,826/- (Rs. 7.000/- as principal and the remaining amount as interest) on the basis of a Hundi alleged to have been executed by the-defendant on 22nd. June, 1981. The defendant was served with a notice, as prescribed in Form 4,-Appendix B- to the Cope on 8th Jan. 1982, for appearance on 20th Mar., 1982. In response to this notice, the respondent put in appearance on 16th Jan., 1982 and filed an application stating. therein that. he Reenters appearance and wants to defend the claim of the plaintiff...... The defendant has not been sent a copy of the plaint or the annexures thereto". A registered notice in terms of sub-rule (3) of R. 3 was also sent by him to the plaintiff. On the date of appearance (20th March, 1982), as per the summons served upon him, his counsel Shri S. R. Wadhera put in appearance. The written statement on his behalf, however, was filed on 22nd March, 1982. On that date, the trial court passed the following order:--

(3.) Now it is forcefully contended by Shri H. L. Sarin, the learned Senior Advocate for the petitioner, that neither the respondent-defendant had sought the permission or leave of the Court in terms of sub-rule (5) to defend the suit nor did he make any such prayer with-in the stipulated period of 10 days from the date of the service of the summons in Form 44 of Appendix B. In the face of these established facts the trial court has gone entirely wrong in holding that there has been an implied per-mission to the defendant to defend the suit. According to Mr. Sarin, this "implied permission" is not only unknown to the Code but is also derogatory to the language of sub-rule (5) of R. 3. This sub- rule (5) reads as follows.- "The defendant may, at any time with-in ten days from the service of such summons for judgment, by affidavit or, otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just: Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious: Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court. Mr. Sarin maintains that mere filing of d written statement by the defendant does not amount to the disclosing of facts which entitle him to defend the suit or cannot be taken as an application for leave to defend the suit. According to the learned counsel, this is more so when a specific objection was raised on behalf of the plaintiff on 22nd March, 1982, to the filing of the written statement by the defendant in the absence of any prior permission. As against this, the firm stand of Shri Jhanji, the learned counsel for the respondent, is that all that has been prescribed in R. 3. O. 37 is only procedural and noncompliance of any particular sub-rule cannot defeat the ends of justice. According to the learned counsel. from the factum of the filing of the written statement by the defendant, the lower court has rightly concluded that it had impliedly granted the permission to defend the suit. 1, however, find it difficult to sustain the stand of Mr. Jhanji. It may be pointed out here and now that the learned counsel is not in a position to refer to any precedent in support of his argument. Otherwise also I find that it the proposition as advanced by him is accepted then the wording of this sub-rule to the effect that the defendant has to apply within ten. days from the service of summons on him in Form 4-A of Appendix B disclosing such facts as may be deemed sufficient to entitle him to defend the suit and to obtain the leave of the Court in that regard are rendered completely. nugatory. No doubt, the phraseology of the first proviso to this sub- rule indicates that normally permission shall not be refused unless the Court is satisfied from the facts disclosed by the defendant that he has either no substantial defence to raise or the in-tended defence is simply frivolous or vexatious but it does not imply that no specific permission has to be sought or granted by the Court for defending the suit. I hardly need dilate on the well laid down principle which Mr. Jhanji highlights that rules of procedure are designed to facilitate justice and further its ends and cannot possibly be taken as, penal enactment or punishment or penalties. These are not designed to trip people up. But all this does not mean that the clear-cut language of such rules or their intendment has to be given a go-bye. The provisions of sub-rule (5) do envisage the exercise of a judicial discretion by the trial court. Some of the principles applicable to the exercise of this discretion have been. enumerated by the Supreme Court in M/s. Mechalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation AIR 1977 SC 577. No doubt, in this case the Supreme Court was primarily concerned with E. 3 prior to its amendment by Act 104 of 1976 but nonetheless these principles are fully applicable to the language of the present rule. To my mind, this theory of implied permission is completely derogatory to the provisions of R. 3, O. 37 of the Code.